14 Fla. L. Weekly Supp. 315b
Insurance — Personal injury protection — Directed verdict — Reference in final judgment to “verdict” entered in favor of medical provider indicates trial court entered directed verdict, not summary judgment — Entering directed verdict prior to trial is improper, but does not amount to reversible error if legally justified — Evidence — Affidavits — Although insurer failed to preserve issue of sufficiency of physician’s affidavit by challenging affidavit with trial court, appellate court must examine affidavit to fulfill duty to determine whether it is insufficient to support verdict as matter of law — Affidavit was insufficient as matter of law, and trial court erred in entering directed verdict where issue before court was not merely reasonableness of amount of bills, but also relatedness and necessity of treatment, and affidavit merely recites statutory standard for when bills are payable under PIP policy and fails to state nature of insured’s condition, proper treatment for condition, nature and extent of treatment actually provided, whether physician was insured’s treating physician and what made treatment reasonable, related and necessary — Even if trial court entered summary judgment, it erred in doing so based on affidavit insufficient to demonstrate conclusively nonexistence of genuine issue of material fact
UNITED AUTOMOBILE INSURANCE COMPANY, Defendant/Appellant, vs. FLORIDA INSTITUTE FOR PAIN, INC., (a/a/o Antonio Abreu), Plaintiff/Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 05-219 AP. L.T. Case No. 03-11937 SP 05. January 22, 2007. On appeal from the County Court of Miami-Dade County. Counsel: Michael J. Neimand, for Appellant. Marlene S. Reiss, for Appellee.
(Before PETER ADRIEN, LEONARD GLICK, MARIA DENIS ESPINOSA, JJ.)
ORDER ON APPEAL
On February 3, 2003, Antonio Abreu, who was insured with United Automobile Insurance Company (“United Auto”), was injured in a car accident. He was treated for his injures at Florida Institute for Pain (“Florida Institute”), to whom he assigned his Personal Injury Protection [“PIP”] benefits. Florida Institute submitted its medical bills to the Appellant, United Auto, which denied payment. As a result, Florida Institute filed suit against United Auto for failure to pay PIP benefits under Fla. Stat. 627.730 (2003). The parties came before the Court for a final hearing on April 12, 2005. At that time, the only issue remaining before the Court was “reasonable, related and necessary.”1 (See page 15, lines 22-24 and page 24 lines 12-18). Following a discussion between the Court and the parties, prior to the hearing commencing, the Court entered judgment in favor of the Plaintiff, Florida Institute. This Appeal follows.
The parties disagree in their briefs as to whether the trial court below entered a “directed verdict” or a “summary judgment” in favor of the Appellant, Florida Institute. United Auto asserts that the lower court erred by granting a directed verdict in favor of Florida Institute before the trial’s inception. According to United Auto, Florida law directs that granting a directed verdict before the trial is unauthorized and improper. It is United Auto’s contention that granting a directed verdict before trial is appropriate only when the moving party previously filed a motion for summary judgment, with at least 20 days notice to the non-moving party. United Auto argues that a summary judgment motion was never filed for the sole remaining issue in this case — the reasonable, related, and necessity of Mr. Abreu’s medical treatment. Even if a summary judgment was filed, United Auto argues that the supporting affidavit filed by Dr. Marianela De La Portilla is insufficient as a matter of law. Specifically, United Auto contends that the statements the doctor averred to are bare conclusory opinions which do not support a finding of the nonexistence of a genuine issue of material fact or that either party was entitled to judgment as a matter of law. Since the affidavit is insufficient to support granting a summary judgment, United Auto argues that its burden to counter the affidavit failed to shift.
It is Florida Institute’s contention that the standard of review should be de novo since the lower court entered an order granting summary judgment, not a directed verdict. Florida Institute contends that the hearing before trial was a pretrial conference and Florida law permits courts to enter summary judgment on its own motion at pre-trial conference if no issues of material fact exist.2 Moreover, it argues that summary judgment was appropriate since United Auto failed to proffer any evidence that would have created a disputed material fact. Finally, Florida Institute asserts that United Auto’s attempt to challenge the insufficiency of the physician’s affidavit should be waived since this issue was not raised in the trial court.
A review of the lower court’s final judgment indicates that the court used the words. . . ‘Pursuant to the Verdict entered in favor of the Plaintiff (Florida Institute). . .’ This language indicates that the lower court entered a directed verdict, not a summary judgment. The standard of review for a lower court’s directed verdict order is de novo.3 Plotch v. Gregory, 463 So.2d 432, 435 (Fla. 4th DCA 1985). On appellate review, a directed verdict should be affirmed, if, in viewing the evidence in a light most favorable to the non-moving party, it appears that the trier of fact could not have reasonably differed as to establishment of material facts. Id. Assuming that there is no dispute as to the effect of the evidence, though, the trial judge must have also made the correct decision as a matter of law.4 McDonald v. McGowan, 402 So.2d 1197 (Fla. 5th DCA 1981).
The first issue raised by United Auto on appeal, addresses the appropriateness of the lower court’s directed verdict prior to the trial’s inception. The comment to Florida Rule of Civil Procedure 1.480(a) provides for a motion for directed verdict at the close of evidence and before the case is submitted to the jury. Thus, entering a directed verdict prior to a trial’s inception would be inappropriate. Not to mention, that Florida law is replete with cases that have held that it is improper to enter a directed verdict before plaintiff has completed presentation of his evidence. Sheldon Greene & Assoc. v. Williams Island Associates, 550 So. 2d 1142 (Fla. 3d DCA 1989); Henriquez v. Publix Supermarkets, Inc., 434 So.2d 53 (Fla. 3d DCA 1983); Wilfork v. Associated Grocers of Florida, Inc., 343 So.2d 84 (Fla. 3d DCA 1977). While entering a pre-trial directed verdict is improper, courts have found such action does not surmount to reversible error if it is legally justified. Henriquez v. Publix Supermarkets, Inc., 434 So.2d 53 (Fla. 3d DCA 1983).
Thus, this court needs to determine whether it could reasonably differ as to establishment of material facts and whether Florida Institute was entitled to a judgment as a matter of law. The only facts established in this case is the affidavit filed by Dr. De La Portilla. There was no counter-affidavit filed by United Auto, thus there is no dispute as to the material facts. Therefore, this court only need consider whether Florida Institute was entitled to a judgment as a matter of law.
Florida Institute argues that the only issue on appeal is the reasonableness of the amount of the bills. A review of both transcripts contained in the record reveals that the issue before the court was actually the reasonable, necessary, and relatedness of the medical treatment received by Mr. Abreu (T2 at 15). In support of the above issue, Florida Institute filed Dr. De La Portilla’s affidavit (R 35-36). The affidavit states, in its entirety, as follows:
1. My name is Marianela de La Portilla and I am a physician licensed to practice medicine in the State of Florida. Attached hereto and referred to as Exhibit “A” is a copy of my license issued by the State of Florida, Department of Health, Division of Medical Quality Assurance.
2. During the period of time from February 5, 2003, to April 28, 2003, during which Antonio Abreu received treatment at Florida Institute for Pain, I was employed as Physician of said facility.
3. I have reviewed the medical records and billing statements relating to Antonio Abreu and I have determined that said bills are reasonable and that said treatment was necessary and related to Antonio Abreu’s automobile accident of February 3, 2003.
It is United Auto’s contention that Dr. De La Portilla’s affidavit is insufficient to support a judgment as a matter of law. According to United Auto, her affidavit is a factual conclusion that simply recites the legal standard contained in the statute for when bills become payable under a PIP policy. In support of its insufficiency argument, United Auto cites to numerous cases which have examined insufficient affidavits. Holl v. Talcott, 191 So.2d 40 (Fla. 1966); Spradley v. Stick, 622 So.2d 610 (Fla. 1st DCA 1993); Seinfeld v. Commercial Bank & Trust Co., 405 So.2d 1039 (Fla. 3d DCA 1981); Heitmeyer v. Sasser, 664 So.2d 358 (Fla. 4th DCA 1995). Florida Institute argues that the cases cited by United Auto are distinguishable because they involved medical malpractice and negotiable instruments law, not PIP law. In response, Florida Institute argues that United Auto’s failure to challenge the insufficiency of the affidavit at trial should preclude consideration of this issue on appeal.
As a general rule, it is inappropriate for a party to raise an issue for the first time on appeal, unless fundamental error exists. J.T.A. Factors, Inc. v. Philcon Services, Inc., 820 So. 2d 367 (Fla. 3d DCA 2002). A review of the record on appeal indicates that United Auto never challenged the sufficiency of the affidavit with the lower court. Thus, United Auto’s failure to preserve this issue should preclude its argument.
Despite the fact that United Auto failed to preserve this issue, it does not preclude this court from considering whether the affidavit is insufficient to support a verdict as a matter of law. This case is very similar to Holl v. Talcott, 191 So.2d 40 (Fla. 1966), despite the fact that Holl reviewed a summary judgment order in a medical malpractice action and this court is reviewing a directed verdict in a PIP action. Like United Auto, the patient in Holl did not challenge the sufficiency of the affidavits filed in support of summary judgment. Despite the patient’s failure to raise this issue, the court still examined the affidavits because part of its duty when reviewing a summary judgment order is to determine whether the patient is entitled to judgment as a matter of law. Id. at45. The Holl court found that the affidavits were deficient since they failed to state what was wrong with the patient, offered no medical explanation for the affiant’s charges, and failed to connect the alleged acts of negligence with the resulting injury to the patient. The court held that the affidavits constituted a mere plea of not guilty and reversed the summary judgment order. Id.
Like Holl, this court too is charged with the responsibility to determine whether the trial court made the correct decision as a matter of law. McGowan, 402 So.2d at 1199. Similar to Holl, the affidavits in this case are not sufficiently detailed to support a judgment as a matter of law. The doctor’s affidavit fails to inform this court (a) of the nature of Mr. Abreu’s condition; (b) of the proper treatment for his condition; (c) of the nature and extent of treatment actually provided by the doctor; (d) failed to explain what made treatment reasonable, necessary, and related; and (e) failed to indicate whether Dr. De La Portilla was Mr. Abreu’s treating physician. All the affidavit does is recite the legal standard contained in the statute for when bills become payable under a PIP policy. The plaintiff’s burden in a PIP case is to prove that the medical payments sought are reasonable, related to the accident and necessary for treatment. See Derius v. Allstate Indemnity Co., 723 So.2d 271 (Fla. 1998). Since the record demonstrates that the affidavits were insufficient as a matter of law, the lower court’s order granting a directed verdict in favor of Florida Institute should be reversed. There are clearly factual issues that are outstanding, which need to be determined at trial.
Also, even if it was in fact a “summary judgment” the trial court entered in favor of the Appellee, Florida Institute, prior to trial, this Court finds it was also error to do so. When reviewing the entry of a summary judgment, the appellate court must examine the record and any supporting affidavits in the light most favorable to the non-moving party. Turner v. PCR, Inc., 754 So.2d 683 (Fla. 2000). The only document that the trial court had before it to consider when making its ruling, was the affidavit of the treating physician, Marianela De La Portilla, which merely contained the conclusionary statement that she reviewed the medical records and billing statements related to Antonio Abreu and determined that said bills are reasonable and that said treatment was necessary and related to the victim’s automobile accident of February 3, 2003. Such conclusionary statements made by a treating physician have been found to be insufficient. The affidavit does nothing more than recite the legal standard contained in the statute for when bills may become payable under a policy for personal injury protection. These types of affidavits do not demonstrate conclusively the nonexistence of any genuine issue of material fact which would entitle Florida Institute to judgment as a matter of law. The affidavit fails to resolve any factual questions raised in the pleadings. See Holl v. Talcott, 191 So.2d 40 (Fla. 1966) and Spradley v. Stick, 622 So.2d 610 (Fla. 1st DCA 1993). The Appellee’s position that the only issue before the trial Court was the reasonableness of the amount of the bill is without merit. This was not stipulated to by the parties and the trial Court cannot draw that conclusion just based on the insufficient affidavit that was submitted. The reality is that absent a stipulation by the parties, the Appellant can challenge the facts leading up to the issue of reasonableness, related and necessary just based on the evidence the provider presents, by arguing that they failed to establish their burden. Since the lower court’s ruling is being reversed, this Court declines to rule on the issue of attorney’s fees and costs and remands this issue to the trial court.
Accordingly, the lower tribunal’s order is hereby Reversed and Remanded.
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1The Appellee, Florida Institute for Pain, attempts to narrow down the issues that were before the trial Court to the issue of ‘reasonableness’, however, there was never a clear stipulation or finding made by the Court that indicated this was in fact the only issue left to be resolved at trial.
2There is absolutely no indication on the record whatsoever that this hearing was a continued pretrial conference or that the trial court was treating the meeting as such. The trial court was merely determining readiness for trial.
3De Novo review simply means the appellate court is free to decide the question of law, without deference to the trial judge, as if the appellate court had been deciding the question in the first instance. See Philip J. Padovano, Florida Appellate Practice, Vol. 2, §9.4, p. 161 (2006 ed., West 2005).
4See Philip J. Padovano, Florida Appellate Practice, Vol. 2, §9.4, p. 164 (2006 ed., West 2005).
